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Probate in New York City

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laura1255

Junior Member
My state is New York City. My father died in December 2002 in NYC but my brother refused to offer his will that he had created with my mother for probate. Has the time of limitations passed to force my brother to have my father's will that he created with my mother in the US for probate?
My mother died in December 2008 in Italy and this time I went to Brooklyn Court to have my brother file the will. He filed a pour over will and an Irrevocable Living Trust dated August 2005 where he had my mother put the real estate in Brooklyn in the trust which he sold and refused to give anything to his 2 sisters since he had my mother disinherit the 2 daughter and all grandchildren of the 2 daughters. Can I ask the Surrogate Court to order my brother to offer the pour over will and Irrevocable Living Trust for probate? He states that a pour over will and Irrevocable living trust created in the US do not have to go for probate.
My mother also left a holographic will in Italy dated June 2008 where she directs my sister to give my share to my 2 sons. Will the holographic will she left in Italy have any validity in the Brooklyn Surrogate Court?
 
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anteater

Senior Member
You have a complicated situation and would benefit by retaining any attorney. But a few comments:

1) If I remember correctly, New York does not have any time limits on opening probate.

2) A pour-over wiil would still need to be probated in order to convey any assets to the trust. But, if all assets were already part of the trust, then there would be no need.

3) New York only recognizes holographic wills in very limited situations.

Sec. 3-2.2 Nuncupative and holographic wills.
(a) For the purposes of this section, and as used elsewhere in this chapter:
A will is nuncupative when it is unwritten, and the making thereof by the testator and its provisions are clearly established by at least two witnesses.
A will is holographic when it is written entirely in the handwriting of the testator, and is not executed and attested in accordance with the formalities prescribed by 3-2.1.

(b) A nuncupative or holographic will is valid only if made by:
A member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged.

A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict.

A mariner while at sea.

(c) A will authorized by this section becomes invalid:
If made by a member of the armed forces, upon the expiration of one year following his discharge from the armed forces.

If made by a person who serves with or accompanies an armed force engaged in actual military or naval service, upon the expiration of one year from the time he has ceased serving with or accompanying such armed force.

If made by a mariner while at sea, upon the expiration of three years from the time such will was made....
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